Updated: Oct 30, 2020
On Tuesday, October 27, 2020, at 11:45 am, Connelly Law Offices, Ltd. and Capitol Ridge at Providence, a Benchmark Senior Living Community, partnered to present a
live special virtual presentation on Advance Directives that was available free of charge to anyone who wished to watch the presentation and join the discussion. Presentation participants were able to ask questions about this subject.
Advance Directives are legal documents that allow an individual to convey their decisions about end-of-life care ahead of time. Advance Directives provide a way for individuals to communicate their wishes to family, friends, and health care professionals in order to avoid confusion and family strife should an incapacitating illness occur.
Dori Laack, Director of Community Relations at Capitol Ridge, has opened this special presentation to the public. She told Connelly Law that she realizes that such discussions are always difficult to have, mostly for younger family members. "But research has shown that older adults exhibit a sense of relief after sharing their end of life wishes. It's an important subject for all concerned," said Laack.
The presenter will be Southern New England's award-winning Certified Elder Law Attorney (CELA), RJ Connelly III. Connelly is a strong proponent of Advance Directives, feeling that they are among some of the most important documents that an individual can have in place as part of a comprehensive estate plan of just as stand-alone documents for end of life care.
"This is not an easy subject to broach with family members," said Connelly. "It's human nature to avoid unpleasant subjects like a loved one's incapacity or serious illness, but the problems that can arise by not doing so can tear families apart at a time when they need each other's love and support."
"If a person cannot make decisions due to incapacity and has created no advance directive, medical providers traditionally turn to family members for such treatment decisions," continued Connelly. "But this is not without problems and risks."
"Close family members are considered to be in the best position to know what the loved one would want if they were competent to make their own choices, unfortunately, this often leads to conflicts among families. Family members may make bad decisions based upon ignorance, a desire to end family anguish or even ill motive," said Connelly.
A Brief Look at Advance Directives
A LIVING WILL
This document is designed to control some future health decisions if and when that person is unable to make decisions for themselves. The person must have a terminal illness (cannot be cured) or be permanently unconscious (usually called a “persistent vegetative state”). Although these laws may vary from state to state, living wills are usually honored. No "heroic measures" is a choice of many.
A living will also state, in writing, the type of medical care a person may or may not want should a life-threatening crisis occur. It can describe what measures may be taken to prolong life such as the use of feeding tubes, dialysis, or breathing machines. The living will is a formal document that must be written under the direction of the patient and signed by them as well. Most states require the document to be witnessed and notarized, however, the witnesses usually cannot be a spouse, potential heirs, the patient’s doctor, or employee of the healthcare facility.
Things that need to be addressed in this document are:
The use of equipment such as dialysis machines or ventilators;
“Do Not Resuscitate (DNR)” orders – instructing medical personnel not to use CPR or "heroic measures" if breathing stops;
The use of a feeding tube – does the individual want to be given fluid or nutrition if there is no hope of recovery;
Do they want treatment for pain, nausea, or other symptoms even if they aren’t able to make other decisions (this is called “comfort care” or “palliative care”);
Whether they want to donate organs or other body tissues after death.
It is also important to understand that not choosing to have aggressive medical treatment doesn’t mean the individual is refusing all medical care. A person can still get antibiotics, nutrition, pain medicine, and other treatments. It’s important that an individual make clear exactly what they want.
A living will is revocable at any time and in some states, they may be automatically voided after a certain period of time.
HEALTHCARE POWER OF ATTORNEY
The Healthcare Power of Attorney also called a Durable Power of Attorney for Healthcare or Healthcare Proxy allows another, whom the person designates, to act as the agent (the attorney in fact) and make healthcare decisions for them. The agent a person chooses must act in accordance with their desires as stated in this document or otherwise made known to others. This document allows the agent to give the doctor consent around treatment options, including stopping all forms of treatment.
Even if this form is in effect, a person still has the right to make decisions for themselves as long as they have the ability to give informed consent and at no time can treatment be given to them over their objection. Healthcare that is necessary to keep them alive may not be stopped or withheld if they object at the time.
This document gives the agent authority to consent, to refuse to consent, or to withdraw consent to any care, treatment, service, or procedure to maintain, diagnose, or treat a physical or mental condition. This power is subject to any statement of the individual's desires and any limitation that they include in this document.
A court can take healthcare decision powers away from the agent if the agent:
Authorizes anything that is illegal;
Acts contrary to the individual's known desires; or
Where their desires are not known, does anything that is clearly contrary to their best interests.
Unless the individual specifies a period that the POA is in effect, this power will exist until they revoke it. The agent's power and authority cease upon the individual's death except to inform the family or next of kin of their desire, if any, to be an organ and tissue donor.
FINANCIAL POWER OF ATTORNEY
A trusted fiduciary handling a person's finances is important. It’s also important to consider the financial power of attorney because of the complications that can arise in such situations. A financial power of attorney not only gives the "agent" or selected individual power over your finances but can also include specific directions on how the finances need to be handled.
This gives peace of mind to all concerned during such a stressful time and ensures that the financial wishes of the individual are being carried out. Some of the tasks that are handled by a financial power of attorney are:
Buying, selling, and maintaining the property;
Taking care of taxes, including property and federal, state, and local income taxes and filings;
Managing all accounts, including savings, retirement, and stocks/bonds;
Paying medical expenses including health insurances;
Accessing and monitoring financial records in order to avoid and financial abuses;
Transferring and selling assets;
Managing day to day expenses such as paying utilities, auto payments, etc.;
It’s also in the best interest of the individual to seek an “agent” who is a fiduciary. A fiduciary owes to the individual the duties of good faith and trust and is bound ethically to act in the individual's best interests. The financial power of attorney stops upon the death of the individual, so it is imperative that an executor is also named who will deal with financial matters at that time. There are ways that this type of power of attorney can be terminated.
DO NOT RESUSCITATE ORDER (DNR)
A do-not-resuscitate (DNR) order can also be part of an advance directive. Hospital staff tries to help any patient whose heart has stopped or who has stopped breathing. They do this with cardiopulmonary resuscitation, including using a defibrillator.
A DNR is a request not to have CPR if an individual's heart stops or if they stop breathing. An individual can use an advance directive form or tell the doctor that they don’t want to be resuscitated. The doctor will put the DNR order in the medical chart. Doctors and hospitals in all states accept DNR orders. They do not have to be part of a living will or other advance directives. Other possible end-of-life issues that may be covered in an advance directive include:
Ventilation – if, and for how long, an individual wants a machine to take over their breathing;
Tube feeding – if, and for how long, an individual wants to be fed through a tube in their stomach or through an IV;
Palliative care (comfort care) – keeps the individual comfortable and manages pain. This could include receiving pain medicine or dying at home;
Organ donation – specifying if the individual wants to donate their organs, tissues, or body for other patients or for research.
A HIPAA Privacy Rule Authorization gives health care professionals and health insurance companies an individual's explicit permission to release protected health information about the to designated parties. Without this authorization, doctors and other health care providers cannot legally share a person's medical information in ways that violate the Privacy Rule of HIPAA. (Note that they do not need explicit authorization to share information about the individual with other medical professionals who are directly involved in their treatment).
However, where such forms are needed is in cases where a relative or “agent” needs to gather health information from providers, medication information from pharmacies, or other health care documents that may be needed by providers or a care facility.
An individual may want to sign a HIPAA Authorization to give their health care providers the right to disclose their medical condition to a particular party. An example would be their adult child so he or she can discuss their health with a physician or an attorney if he or she is a guardian or needs access to the medical records for legal reasons.
Pre-paid Funeral Discussion
Attorney Connelly also discussed pre-paid funerals, a way for people to pay for their funeral arrangements before they pass. It's also for people who want to spare their loved ones from having to make decisions and experience financial stress while grieving. However, there are some risks involved with this and Connelly discussed the safest way to plan for this.
We thank everyone who attended this special event.